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Zhou v. He

June 6, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1316-04.

Per curiam.


Submitted May 19, 2008

Before Judges Graves, Sabatino and Alvarez.

After a multi-day trial, the Family Part ordered the entry of final terms of divorce between plaintiff Shaunpen Zhou ("the father") and defendant Shufen He ("the mother") on July 26, 2007. The father now appeals various aspects of the final order relating to custody, child support, equitable distribution, and the award of partial counsel fees to the mother. The mother cross-appeals the fee award as insufficient. We affirm.

The parties married in China on May 11, 1988. Their sole child is a son, who was born in January 1997. The father has a masters degree in computer science and the mother has an associates degree in statistics. Both parties are employed. Before separating, the parties lived with their son in a rented apartment.

In 1998, in contemplation of divorce, the father wrote the mother a check for slightly more than $35,000, with the intent of settling the division of marital assets. The mother cashed the check, but did not sign a corresponding separation agreement that had been drafted by the father. Soon thereafter, she sent her parents in Shanghai $30,000, which they used to buy a condominium there.

The mother filed a complaint for divorce in September 1999, but withdrew it two months later as the parties attempted a reconciliation. The parties were unable, however, to repair their relationship. In September 2001, the father drafted another separation agreement that purported to divide the assets in a joint account. Neither party signed this agreement, but from that point on they kept their respective earnings separate.

Consequently, in January 2004 the father filed his own divorce complaint.

Meanwhile, the mother bought a townhouse in Piscataway, where she moved with the son. The court designated her the parent of primary residence, pendente lite, with the parties sharing joint legal custody. A guardian ad litem for the son recommended that the father have no overnight visits until he obtained better living quarters. Nonetheless, the court granted the father one overnight visit weekly, also pendente lite.

After a default hearing in May 2005, at which both parties appeared, the father submitted a draft final judgment to the court. The father's draft shifted primary residential custody to him, even though no such transfer had been approved at the default hearing. The father improperly failed to copy the mother on his submission. The court initially did not recognize that oversight, and executed the father's draft. Upon receiving a copy of the entered judgment, the mother retained counsel and moved to vacate it. The court subsequently amended the judgment in November 2005, reinstating the pendente lite custody arrangement and reserving various financial issues for trial. The father prematurely appealed that ruling. We dismissed the appeal as interlocutory, and remanded the matter to be completed in the Family Part. See Zhou v. He, No. A-1366-05 (App. Div. May 31, 2006) (slip op. at 6).

The remaining issues were tried on four intermittent trial days before Judge Michael Toto between December 2006 and March 2007. The mother was represented at trial by counsel and the father was pro se. The court heard testimony from both parties and also interviewed their son in camera, pursuant to Rule 5:8-6. Following post-trial submissions by both parties, Judge Toto issued a written decision on May 30, 2007.

Rejecting the father's claim that he was better suited to serve as the son's main caretaker, Judge Toto continued primary residential custody with the mother. However, the judge awarded the father expanded parenting time, with alternate weekends from Friday afternoon to Monday morning, and overnights every other Wednesday. In this regard, the judge made the following pertinent findings:

I had the benefit of interviewing [the parties' son] who is an extremely intelligent, well-spoken child. He enjoys both parties' cooking, plays sports with his father, attends museums, and enjoys the magazines at his father's house (scientific, nature, astrology and geology). He has several pets at his father's house (fish and frog). [He] indicated that his friends do come over to his mother's house, but not his father's, but [he] enjoys going to his ...

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